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IN THE HIGH COURT OF BOMBAY
S.H. Kapadia, J.
SHASHIKANT SRIKRISHNA SOMPURKAR - Appellant
Vs.
TATA MEMORIAL HOSPITAL AND OTHERS - Respondent
Writ Petition No. 2271 of 1989
Decided on : 15-07-1993
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 33(2)(B) - APPROVAL OF DISMISSAL - DEFECTIVE ENQUIRY - FULL-FLEDGED ADJUDICATION REQUIRED - INDUSTRIAL TRIBUNAL TO DECIDE APPLICATION ON BASIS OF FINAL ADJUDICATION.
Fact of the Case:
Petitioner, an upper grade clerk at Tata Memorial Hospital, was dismissed for misconduct after an enquiry. The Industrial Tribunal set aside the enquiry as defective and directed the Hospital to lead evidence to justify the dismissal. The Tribunal granted approval for the dismissal on a prima facie basis, holding that it was not required to adjudicate the matter fully under Section 10 of the Industrial Disputes Act.
Finding of the Court:
The Bombay High Court held that the Industrial Tribunal erred in granting approval on a prima facie basis. It set aside the Tribunal's order and directed it to decide the application for approval on the basis of full-fledged adjudication, as required by the judgment of the Court in Ganesh Rajan Servai v. Bennett Coleman & Co.
Issues: Whether the Industrial Tribunal was right in granting approval for the dismissal of the petitioner on a prima facie basis after setting aside the domestic enquiry as defective.
Ratio Decidendi: The Court held that where an enquiry is set aside as defective, the Industrial Tribunal is required to adjudicate the matter fully under Section 10 of the Industrial Disputes Act, and not merely on a prima facie basis. This is because the Tribunal is required to determine the justifiability of the dismissal, and this cannot be done properly without a full-fledged adjudication.
Final Decision: The Court set aside the Industrial Tribunal's order granting approval for the dismissal and directed it to decide the application on the basis of full-fledged adjudication.
JUDGMENT :
S.H. Kapadia, J.
By this writ petition under Article 226 of the Constitution, the petitioner-workman seeks to challenge award dated April 28, 1989 passed by the Industrial Tribunal in Application (IT) No. 53 of 1982 in Reference (IT) No. 298 of 1981 by which the Industrial Court allowed the application filed by respondent No. 1- Hospital u/s 33(2)(b) of the Industrial Disputes Act, 1947.
2. The facts giving rise to this writ petition are as follows:
(b) On September 4, 1980, he was transferred to the Library in the same grade.
(c) On September 3, 1980, the said Hospital gave a memo to the petitioner stating that the Hospital has been informed by the Librarian, the immediate superior of the petitioner, that the petitioner has been refusing to do work in August 1981 and that he has continued to refuse to do the work as listed in the said memorandum (page 18 of the Writ Petition).
(d) By reply dated September 9, 1981, the workman denied the allegations made in the memorandum
(e) By charge-sheet dated October 5, 1981, the petitioner was charged for misconduct on the ground that he has been refusing to do and/or carry out his duties listed in the above memorandum and which duties constituted part of his normal work. By the said charge sheet, he was informed that the petitioner was wasting time by reading personal books and by refusing to do his duties despite his superior asking him to do so as listed in the above memorandum.
(f) Thereafter, enquiry was held by the Enquiry Officer who gave his findings on January 7, 1982 by which the charges levelled against the petitioner came to be decided. By the said findings dated January 7, 1982, the Enquiry Officer held the petitioner guilty of misconduct.
(g) Pursuant to the said findings, the petitioner came to be dismissed on May 12, 1982 by the Hospital.
(h) As Reference (IT) No. 298 of 1981 was pending before the Industrial Tribunal, the Hospital made an application for approval u/s 33(2)(b) of the Industrial Disputes Act, being Application (IT) No. 53 of 1982. By the said application, it was stated by the Hospital that the petitioner has been dismissed for misconduct listed in the memorandum dated September 3, 1981; that he was dismissed pursuant to a fair and proper enquiry and that the order of dismissal was correctly passed and since reference was pending, application for approval was made u/s 33(2)(b) of the Act.
(i) By order dated April 6, 1984, the Industrial Tribunal came to the conclusion that the enquiry conducted by the Hospital into the above charges was defective and, therefore, the said enquiry was set aside. By the said order dated April 6, 1984, the Industrial Tribunal, however, directed the Hospital to lead evidence to justify the action of dismissal taken by the Hospital for the misconduct.
(j) By the said order dated April 6, 1984, evidence came to be recorded before the Industrial Tribunal in the said Application (IT) No. 53 of 1982. The said evidence was recorded during the period of February 25, 1986 to June 17, 1986 by the Industrial Tribunal in the said application.
(k) By award dated June 6, 1989, the Industrial Tribunal granted approval u/s 33(2)(b) of the Industrial Disputes Act on the ground that although the enquiry was defective, in view of the various judgments of the Supreme Court as well as of this Court, the order of dismissal dated May 12, 1982, was justified. According to the Industrial Tribunal, in cases where enquiry was defective, the Industrial Tribunal was entitled to permit the employer to lead evidence and after the evidence is led, the Industrial Tribunal was required to examine the justifiability of the order of dismissal on the basis of prima facie case and not on the basis of adjudication as u/s 10 of the Industrial Disputes Act. According to the Industrial Tribunal, by its impugned award, the present case fell in the second category viz.,
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